TWENTY-FIVE WAYS YOU CAN IMPROVE YOUR CHANCERY TRIAL PRACTICE
April 10, 2013 § Leave a comment
Twenty-Five Ways You can Improve Your Chancery Trial Practice, published in the Mississippi Law Journal’s online edition Supra. Click on the .pdf link.
CONSTITUTIONALLY UNPROTECTED FATHERS
April 9, 2013 § 2 Comments
If you do any adoption work, the case styled In the Matter of the Adoption of a Minor Child, A.S.E.L.: V.S.P v. M.J.W. and M.S.L., decided by the COA on April 2, 2013, is one you should be familiar with.
The facts are somewhat involved, but the essence is that Vincent, age 19, and Dana (pseudonyms), age 17, had a child together, whom they named Andy, born May 25, 2004. Vincent was not listed as the father on the birth certificate. Shortly after the birth, the young couple split and Dana moved from place to place with the baby. Vincent had little contact with Dana or the child, and he did nothing to help support his offspring.
Through a series of events, Dana’s brother Mark, and his wife, Melanie, obtained custody of Andy in youth court.
Melanie and Mark decided to adopt Andy, and in April, 2005, Dana signed a consent to adoption. Vincent was not made a party to the adoption because paternity had never been established. A judgment finalizing the adoption of the child by Mark and Melanie was entered December 16, 2005.
In September, 2009, nearly four years after the adption, Vincent filed an action to set it aside, claiming that it was void because he was not made a party, despite the fact that everyone involved should have known that he was the father, and that Dana was coerced into executing the consent.
The chancellor denied Vincent any relief, and he appealed. Judge Barnes, for the majority, wrote:
¶21. … we note generally the setting aside of an adoption decree is disfavored in Mississippi. See [In Re Adoption of J.E.B., 822 So.2d 949, at 952] (¶10) (citing Humphrey v. Pannell, 710 So. 2d 392, 399 (¶35) (Miss. 1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So. 2d 702, 705 (¶12) (Miss. 1998) (citing In re Adoption of R.M.P.C., 512 So. 2d 702, 707 (Miss. 1987)).
¶22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256. In Caban v. Mohammed, 441 U.S. 380, 392-94 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.
The court went on to affirm the chancellor’s ruling, holding that if a biological father has failed to establish the quality of relationship described in the US Supreme Court decisions and in MCA 93-17-6, then he has no constitutionally protected right to process and participation in the proceeding, and failure to serve him with process does not void the adoption judgment.
Several observations:
- Not a criticism of counsel, but wouldn’t it have been more prudent to get a consent from Vincent? The undisputed facts establish that he was agreeable with the adoption at the time it was in process. If he did not want to admit paternity, language could have been added to the consent to the effect that he did not know whether he was the father, but, in the event that he might be, he consented to the adoption. Lawyers sometimes yield to the client’s desire to do it the easiest way, when a little more trouble now could avoid lots more down the line.
- Add some protective language to your consents. Add language to the effect that it was not coerced, was freely given, and that the signer knows and understands that it is irrevocable and can not later be undone. It may not be conclusive in a later attack, but it would certainly buttress the defense of the original judgment.
- Ponder measures you can take to immunize your judgment from attack months and even years down the road. Make sure you have tended to every detail, especially jurisdictional detail, in strict compliance with the statutes. In the past few years, it has become increasingly common for parties to agree to one thing, and then to hire another lawyer to try to set the agreement aside. The more armor-plating you add to your judgments (and property settlement agreements and contracts, for that matter), the more likely it is that they will survive attack.
APPEARANCES ARE NOT DECEIVING
April 8, 2013 § 2 Comments
The COA’s decision in Richard v. Garma-Fernandez, handed down March 19, 2013, is one every chancery practitioner should read and appreciate for the ramifications of entering an appearance on behalf of a party.
In this case, Emilio Garma-Fernandez (hereinafter EGF) filed suit against 10 defendants, including Richard, based on a commercial contract. The suit alleged claims for accounting, imposition of resulting and constructive trusts, equitable ownership, injunction, breach of contract, tortious interference with contract, anticipatory breach, and other issues giving rise to damages and attorney’s fees.
Richard was not personally served with process, but an attorney, White, notified EGF’s attorney that she was representing him and five other defendants, and, based on that contact, EGF’s lawyer from that point on sent all communication and pleadings to White on behalf of Richard. After that, when Richard attempted to communicate with EGF’s lawyer, the lawyer directed him to stop because he was represented by counsel.
In due course, White filed a pleading styled “Motion, Answers, Defenses and Counterclaims” of certain named defendants, including the name of Richard (“Richards” in the pleading).
EGF’s lawyer served discovery requests on Richard through White, and White did not respond. The chancellor ruled that any matters not produced in discovery would be inadmissible at trial, and that the matters request to be admitted were taken as admitted. He further dismissed Richard’s counterclaim with prejudice and awarded attorney’s fees to EGF.
EGF then filed a motion for summary judgment against Richard. White asked for more time to respond, claiming she could not locate Richard, that his file was in storage because she had moved her office, and that since Richard was located in Virginia he needed additional time. Nearly two months later the court granted summary judgment. When EGF began collection proceedings in Virginia, Richard filed a limited appearance to contest jurisdiction and for relief from judgment per MRCP 60, claiming that White did not represent him, and among other items of evidence offered White’s affidavit that she had listed him in error as one of the parties she did represent in the action. The chancellor ruled that Richard had entered his appearance, submitting himself to the jurisdiction of the court via attorney White, and denied him relief. He appealed.
The COA affirmed. I quote at length:
¶19. Richard filed a motion for relief from judgment under Mississippi Rule of Civil Procedure 60. Rule 60(b)(4) provides: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reason[s]: . . . (4) the judgment is void.” A judgment is void if the rendering court lacked personal or subject-matter jurisdiction or acted in a manner inconsistent with due process. Overbey v. Murray, 569 So. 2d 303, 306 (Miss. 1990) (citations omitted).
¶20. The question presented is whether Garma-Fernandez’s judgment was void because the chancery court lacked personal jurisdiction over Richard. For a judgment to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So. 2d 358, 359 (¶3) (Miss. Ct. App. 1999).
¶21. A court obtains personal jurisdiction over a defendant in one of two ways. Personal jurisdiction is established when a defendant is properly served the summons and complaint under Rule 4 of the Mississippi Rules of Civil Procedure. Personal jurisdiction is also established when a defendant voluntarily enters an appearance. Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003) (citations omitted). “One waives process and service . . . upon making a general appearance.” Id.
¶22. Richard was not served with Rule 4 process. However, Richard entered an appearance in this case when White filed a responsive pleading on his behalf. When White filed the responsive pleading on September 24, 2009, Richard voluntarily entered an appearance in the Chancery Court of Oktibbeha County and was subjected to the jurisdiction of the court. The fact that Richard was not served with process under Rule 4 no longer mattered.
¶23. Despite this voluntary appearance through attorney White, Richard could have contested both personal jurisdiction and insufficiency of service of process in the responsive pleading. See M.R.C.P. 12(b)(2), (5). He did not. The result was that the responsive pleading, without the Rule 12(b) defense asserted, waived his right to contest personal jurisdiction. See M.R.C.P. 12(h)(1). “[T]he right to contest the court’s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Schustz v. Buccaneer, Inc., 850 So. 2d 209, 213 (¶15) (Miss. Ct. App. 2003). “Thus, a defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way—such as participating in hearings or discovery—may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process.” Id.
¶24. Our inquiry does not end here. Richard argues that a Mississippi attorney cannot give a Mississippi court personal jurisdiction over a nonresident unless that attorney has been hired by the nonresident. Richard’s brief cites, but does not discuss, Rains v. Gardner, 719 So. 2d 768 (Miss. Ct. App. 1998).
¶25. In Rains, this Court acknowledged that an individual can waive process, and an authorized attorney may enter an appearance on his behalf. Id. at 770 (¶7). When this issue is raised, the party that claims an appearance has been made bears the burden of proof. Id.
¶26. One defendant, Ginger Gardner, was represented by an attorney. Id. at 769 (¶5). Gardner’s attorney appeared on her behalf but argued that the other defendant, Tina Clark, whom the attorney did not represent, should also be dismissed from the action. Id. When the court asked the attorney whether he represented both defendants, the attorney definitively stated he only represented one (Gardner). Id. Nevertheless, the attorney renewed his argument that both defendants (Gardner and Clark) should be dismissed. Id. The plaintiff, Hazel Rains, argued that Gardner’s attorney’s actions constituted a voluntary appearance on behalf of Clark. Id. The trial court rejected that argument, and Rains appealed. Id. at (¶¶5-6).
¶27. This Court found that because there was not “even a hint of evidence” that the attorney actually represented Clark, Rains’s argument had no merit. Id. at 770 (¶7). This Court also noted that even if the attorney had made extensive arguments on the unrepresented defendant’s behalf, the attorney could not have entered a voluntary appearance on behalf of the individual if he acted without authority. Id.
¶28. This case is not factually similar to Rains. Here, White filed pleadings on behalf of Richard, and other defendants. The question the chancellor had to decide was whether Richard consented to or authorized White’s representation.
¶29. The chancellor determined that there was sufficient evidence to conclude that Richard consented to and authorized White’s representation. White filed the responsive pleading that specifically named Richard as a defendant [footnote omitted] whom she represented. Garma-Fernandez’s attorney served White with discovery for Richard. There was correspondence from Garma-Fernandez’s attorney to White that discussed her representation of Richard. The court entered an order compelling Richard to respond to discovery, with White acting as his attorney.
¶30. Also, the October 15, 2010 “Joint Motion for Extension of Time to Respond to Motion for Summary Judgment and Motion for Continuance” was filed only on Richard’s behalf. White represented herself as “his counsel of record.” White stated to the court that she had not been able to notify Richard of the motion for summary judgment, and that, because Richard was a Virginia resident, sixteen days was not enough time to make arrangements for him to appear at the hearing. Also, in this motion, White refers to Richard as “her client.”
¶31. We recognize that Richard’s affidavit attached to the limited-appearance motion claims that he never authorized White to act on his behalf. However, an assertion in Richard’s affidavit was contradicted by the evidence. White’s affidavit states that she was not and never had been Richard’s attorney. White’s affidavit, however, was contradicted by her previous assertions to the court. We agree with the chancellor that the credibility of both affidavits was undermined.
¶32. We find the evidence in the record demonstrates that White did, in fact, enter an appearance for Richard, and that she was his authorized representative in this action. Therefore, we find no merit to this issue and find no error in the chancellor’s judgment that found the court had personal jurisdiction over Richard. The chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit.
¶33. Next, Richard claims that knowledge of litigation is not sufficient to confer jurisdiction. This Court has stated “even actual knowledge of a suit does not excuse proper service of process.” Blakeney v. Warren Cnty., 973 So. 2d 1037, 1040 (¶13) (Miss. Ct. App. 2008) (quoting Mansour v. Charmax Indus., 680 So. 2d 852, 855 (Miss. 1996)).
¶34. As discussed above, the chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit. The chancellor correctly determined that the court gained personal jurisdiction over Richard through his general appearance. Therefore, we find no merit to this issue.
A few quick points:
- If you’re going to enter a special appearance to contest personal jurisdiction, make sure it’s the very first thing you file, even before an “Entry of Appearance” or a motion for more time. Any filing other than a pleading styled “Special Appearance to Contest Jurisdiction” can be construed as a personal, general appearance, even a simple motion for more time or that “Entry of Appearance.”
- When you file anything in a court file on behalf of a party, you are bound to represent that party, and the party is bound by your pleadings. Make sure you act within the authorized scope of your representation.
- I have seen cases where a lawyer signs off on an agreed order to reset a case in the hope that the party will hire the lawyer, but the fee never materialized. It’s no fun watching the lawyer trying to deny responsibility in the case while the client (innocently or not) claims that he/she is relying on that lawyer. If you inject your name into a case, you are in it until the judge lets you out.
- Losing contact with a client can have miserable results for the client. Clients who blame you for their misery can make your life mi$erable.
“QUOTE UNQUOTE”
April 5, 2013 § Leave a comment
“Whenever a separation is made between liberty and justice, neither, in my opinion, is safe.” — Edmund Burke
“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.” — Frederick Douglass
“First they came for the Socialists, and I did not speak out — because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out — because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out — because I was not a Jew. Then they came for me — and there was no one left to speak for me.” — Martin Niemöller
THE MISCHIEF OF “FAMILY SUPPORT”
April 4, 2013 § 3 Comments
I’ve spoken here before about the mischief that can arise when one uses the ambiguous term “family support” instead of terms of art such as “child support,” “alimony,” and “property division” that are familiar to our courts. As I said in a previous post, the repercussions can be quite unexpected and unpleasant for your client.
In a decision handed down March 11, 2013, the US Tax Court in the case of DeLong v. Commissioner of Internal Revenue, ruled that the term “family support” creates an alimony obligation, and not a child support obligation.
You can read the decision for yourself, but it essentially turns on the point that since the obligation is not specifically denominated as child support the IRS will not consider it such.
This case arises out of a California divorce judgment. Note that the opinion states that the tax court will look to state law for how the state would treat the obligation. If this were a Mississippi case, the tax court would, to the best of my knowledge, find no helpful authority because the term “family support” is unknown under our law.
There are some serious side-effects from a case such as this. Child support is not deductible by the payer, and it is not income to the payee. Alimony is, however, deductible by the payer, and it most definitely is income to the payee. So, in this case, Mr. Delong got to deduct the payments under the divorce judgment, and the former Mrs. D. gets a bill for income taxes on the payments. If you had negotiated the settlement for Mrs. Delong and that is what she expected as an outcome, then you’re in good shape. If, on the other hand, she was not expecting a tax bill, you’d better look out.
And if the judge, in a comatose moment, injects that kind of language into a judgment, protect your client by filing a timely MRCP 59 motion to get the judge to correct the ambiguity.
In Mississippi, payments are either alimony, or child support, or property division. Denominate them as such, allocating the specific amounts under each. Never use combined language like “Husband shall pay to wife the sum of $2,500 each month as alimony and child support.” And never use ambiguous, non-legal language like “family support” when there are perfectly suitable, meaningful terms like “child support,” “alimony” and “property division” that do the job quite well.
Thanks to Justin Cobb, Esq.
WOMEN IN THE PROFESSION
April 3, 2013 § Leave a comment
You should have received your Winter edition of The Mississippi Lawyer earlier this week, or maybe you will receive it today or tomorrow.
My initial reaction when I gazed at the photographs of the 14 prominent, accomplished women on the cover was “When will we be able to say, simply, ‘here are 14 notable colleagues in the law,’ and not have to draw gender distinctions?”
And then I opened the cover to see the Mississippi Valley Title advertisement that is the opening page inside. I’ll not spoil the delicious irony of that ad for you, but I think when you see it you will agree with me that it communicates quite eloquently why we are still at a stage where we need to focus on the contributions and abilities of women.
As for the magazine, the articles give an insight into the obstacles and hurdles that some of them had to overcome, but mostly, as I read, I was impressed with the fact that their stories are the stories of all Mississippi lawyers. They are stories of hard work, dedication, ideals, and service.
In my experience, in this corner of the state, women lawyers have been successful and have done a good job. The Twelfth District’s own Polly Covington of Quitman is one of the women highlighted in one of the articles. Congratulations, Polly. As the dean of Clarke County lawyers, and a battle-scarred veteran, I know you provide wise counsel and mentorship to other women in the profession in our area.
The other women who are featured are some of the best lawyers, judges, legal educators, and leaders in the state. I have been fortunate enough to know and work with a number of them.
So, yes, it is still appropriate and desirable to praise the achievements of women in the law. Still, I wish we would get to the point where we’re all just lawyers.
STANDING TO FILE A CLAIM AGAINST AN ESTATE
April 2, 2013 § 3 Comments
The COA decision in Estate of Necaise: Covington v. McDaniel, decided March 12, 2013, addresses the question whether a judgment creditor of the potential heirs of an estate has standing to assert a claim against the estate.
Lawrence Covington probated a claim against the estate of Darryl Necaise, Sr., based on a $1,000,000 judgment he had obtained against three of the decedent’s heirs in the Circuit Court of Yalobusha County. The proceedings are convoluted, involve three separate appeals, all consolidated, and even a separate circuit court proceeding. For our purposes, however, we are focusing on the sole issue of Covington’s standing to assert a claim against the estate when the judgment forming the basis of his probated claim was against some of its heirs, and not against the decedent or the estate itself.
Judge Carlton, for the court, spelled out the answer:
¶23. Covington’s appeals regarding the findings of the chancery court primarily arise out of his claim to be an interested party to the probate proceedings and the contest of Darryl Sr.’s will based upon his pecuniary interest in his judgments against potential heirs of the Estate. In support of his argument, Covington relies on Mississippi Code Annotated section 91-7-25 (Rev. 2004), which states that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.” Significantly, Covington does not assert on appeal that a judgment was entered against the Estate or Darryl Sr., the decedent.
¶24. Relying upon precedent, this Court recognizes that “[i]nterested parties are those whose direct[] pecuniary interests will be either detrimentally or advantageously affected by the probate of the will. Included in this group will ordinarily be [the] decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being contested.” Garrett v. Bohannon, 621 So. 2d 935, 937 (Miss. 1993) (emphasis added and citation omitted). With respect to the claim asserted by Covington, we find that Covington failed to prove he possessed a direct pecuniary interest against the Estate. Moreover, the only heir named in Darryl Sr.’s will, McDaniel, never contested the will. In fact, McDaniel, as the executor, had Darryl Sr.’s will admitted to probate; she possessed no duty to notice any parties except creditors of the Estate, which she alleges she accomplished by publication as required. As previously discussed, Darryl Sr.’s former spouse abandoned any intent to contest the will admitted to probate.
¶25. Covington asserts no direct pecuniary interest in the probate of the Estate. Covington is not a creditor of the Estate and identifies no debt or expense owed to him by the Estate or Darryl Sr., the deceased. Further, Covington is not an heir-at-law of the decedent nor a named beneficiary in any will alleged to have been executed by the decedent. In fact, Covington is not a judgment creditor of the sole heir of the estate, McDaniel. Therefore, Covington fails to establish standing to assert a will contest that would never result in him being a beneficiary of the assets of the Estate. His only connection to the Estate is that he tried, yet failed, to obtain a judgment against Darryl Sr. and the Estate. As such, we find this issue to be without merit.
An interesting twist in this case is how Covington attempted to assert himself into the proceedings as to the validity and enforceability of the will itself. I had never seen a party claiming to be a judgment creditor try to assert those kinds of issues in the probate of an estate.
Chancellor Vicki Cobb apparently considered the issue of standing so clear-cut that she assessed sanctions against Covington. You might want to add the possibility of sanctions into the equation before you leap into filing something similar yourself.
MISSING THE ADVERSE EFFECT TO MODIFY
April 1, 2013 § 1 Comment
In Roberts, v. Roberts, decided March 19, 2013, the COA (majority opinion by Judge Roberts, btw) reversed a chancellor’s decision modifying custody where the chancellor did find material change in circumstances, but did not make a finding of adverse effect on the child, and did not address the Albright factors.
Scott Roberts and his ex-wife Stephanie had come to an agreement that their son Tristan could live with Scott, and that Scott could reduce the child support concomitantly. Scott did not pay the reduced amount as agreed, however. Stephanie later sued Scott for unpaid child support in the amount originally ordered by the court. Scott counterclaimed for custody and defended against her claim for child support that he should be liable only for the extra-judicial amount to which the parties had agreed.
Scott’s pleading for custody, styled “counter motion for custody,” did not expressly pray for modification of custody. Instead, it asked that “hereafter, each party should be responsible for child support of the child in their respective custody with neither party responsible for future support of the other.” It also stated that because Tristan had moved in with Scott full-time, there had been a material change in circumstances warranting modification so that neither should pay child support to the other. The COA, at ¶ 29 found these allegations sufficient to put the issue of modification of custody before the trial court, on the basis that, under MRCP 8(f), “All pleadings shall be construed to do substantial justice” and, per the comment, ” … that the rights of the client are not lost by the poor drafting skills of counsel.” The court concluded that to do otherwise would be to favor form over substance.
The court reversed and remanded the issue of custody, however. Here’s what the decision said:
The COA reversed and remanded, however, so the pleading, with its flaws, goes back for the chancellor for a do-over. Here’s what the COA said:
¶30. Next, Stephanie claims the chancellor erred by modifying custody of Tristan without first finding that there had been a material change in circumstances adverse to Tristan’s best interest. “The Mississippi Supreme Court [has] held that the prerequisites to the modification of child custody are: (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody.” McMurry v. Sadler, 846 So. 2d 240, 243 (¶13) (Miss. Ct. App. 2002) (citing Touchstone v. Touchstone, 682 So. 2d 374, 377 (Miss. 1996)). “[F]or the custody order to be modified so as to transfer custody to the non-custodial parent, the non-custodial parent must prove that since the entry of the decree or order sought to be modified, a material change of circumstances has occurred within the custodial home which adversely affects the minor child’s welfare.” Id. at 244 (¶13). “Therefore, in order for the court to proceed on a matter for custody modification, the pleadings must contain allegations that a material change has occurred which adversely affects the child.” Id. It is inappropriate to modify child custody when the non-custodial parent did not file a motion that specifically stated or alleged that there had been a material change in circumstances that adversely affected a child. Id. at (¶14).
¶31. Scott did not claim that there had been a material change in circumstances or that such a change was adverse to Tristan. Furthermore, the chancellor merely held that there had been a material change in circumstances. The chancellor did not find that a material change in circumstances was adverse to Tristan. Furthermore, the chancellor did not conduct an Albright analysis to determine which parent should have custody of Tristan. This Court has held that when considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody. Thornell v. Thornell, 860 So. 2d 1241, 1243 (¶6) (Miss. Ct. App. 2003) (quoting Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶19) (Miss. Ct. App. 2001)) (quotation marks omitted). Here, we can only guess why the chancellor found that a material change in circumstances was adverse to Tristan’s best interest. Furthermore, the chancellor did not conduct an Albright analysis before he found that it was appropriate to award custody of Tristan to Scott. In Thornell, 860 So. 2d at 1243 (¶¶7-8), this Court reversed a chancellor’s decision to modify child custody, because the chancellor failed to identify a specific change in circumstances that adversely affected the welfare of the child, and the chancellor failed to conduct an on-the-record analysis of the Albright factors. This Court concluded that it was appropriate to reverse the chancellor’s judgment and remand the matter to the chancellor for further proceedings. Id. at (¶¶8-9). Following Thornell, we remand this matter to the chancellor for further proceedings regarding how Tristan’s decision to live primarily with Scott amounted to a material change in circumstances adverse to Tristan’s best interest in light of the fact that Scott and Stephanie agreed that they would have joint physical custody of Tristan and Carleigh.
I agree that the case should have been reversed, but in my opinion the pleadings were fatally defective on two counts:
- In McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002), it was held that a mere allegation of material change in circumstances in a pleading was inadequate to support a claim for modification, and that the pleading must expressly include the allegation that the change has had an adverse effect on the child. A distinguishing factor here is that, apparently, that issue was not contemporaneously raised to the chancellor as it was via a motion to dismiss in McMurry; but it was raised in this case by Stephanie on appeal. Although the appellate opinion references McMurry, it does so not for the pleading aspect of the case, but only for its holding that the proof must support a finding of adverse effect. I agree with Judge Roberts that the requirement imposed in McMurry elevates form over substance, but that is what the appellate court specifically mandated for this specific cause of action, “notice pleading” notwithstanding.
- These pleadings do not even state a claim upon which relief can be granted. In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the supreme court held that where the parties agree for a child to live for a time with the other parent, that circumstance standing alone does not support modification of custody. Since that is all that Scott pled, I don’t see how he could get a permanent modification on the strength of this pleading.
MEET THE SPECIAL GENERAL GUARDIAN
March 28, 2013 § 2 Comments
The governor signed a bill into law on March 14, 2013, that will introduce the concept of “Special General Guardian” to our jurisprudence.
SB 2375, which goes into effect July1, 2013, addresses an increasingly frequent, and troubling, phenomenon — the absent parent. More and more, we are seeing cases in chancery where the parents simply abandon responsiblity for their child or children to relatives or even neighbors. Drugs are the most common reason, but so are immaturity, mental illness, and incarceration.
Under our current system, the person who wants to take responsibility for the child must apply to the court for either a guardianship or custody. A guardianship requires an attorney, accountings, notices to creditors, and on and on. A custody action usually entails litigation because even irresponsible parents balk at losing custody.
Under the new law, codified at MCA 93-13-37, “If the minor ward has a father or mother but no parent able to take responsibility for the minor, and the minor’s assets do not include any real property, cash-on-hand of no more than Two Hundred and Fifty Dollars ($250), and personal property worth no more than One Thousand Dollars ($1,000), and the court finds that it would be in the best interests of the minor, a special general guardian who is related to the minor by blood or marriage may be appointed for the minor.” An attorney is not required, and the court “shall waive” annual or final accountings. At any time that any realty, personalty or monies of the ward greater in value than the initial limits come into the hands of the special general guardian, he or she must comply with all requirements of the law pertaining to general guardians, and, in addition, must seek directions from the court as to the disposition of the assets.
The law also provides an abbreviated procedure for closure, which does not necessarily require a final accounting.
This provision will definitely meet a pressing need in chancery court. The general guardianship statutes do not quite fit this situation. Also, many grandparents (by a large percentage the most frequent petitioners) in these cases are already financially pressed and are getting no financial help from the natural parents, and they find it difficult to divert funds to legal expenses that they would prefer to spend on their new responsibilities.
The Better Chancery Practice Blog 